Smith and another v. Fitch

Smith and another vs. Fitch. A creditor’s bill must state affirmatively that the execution at law was issued to the county where the judgment debtor resided at the time of issuing the execution, otherwise the bill cannot be sustained, and an injunction allowed thereon will be dissolved. It is not sufficient, in the preliminary part of the bill, to state that the defendant was resident of such a county. This refers only to the time of filing the hill, and not to the time of issuing the execution. A defendant cannot, however, disregard an injunction issued upon such a bill, and Will he punished for such disobedience, but his punishment will be confined to the costs of the attachment, and will not extend to the original debt. This is a creditor’s bill. The bill states that the complainants “ of the town of Batavia, in the county of Genesee, and state of New-York, on or about the 8th day of November, 1889, recovered a judgment in the Supreme Court of this state, against Timothy Fitch of the said town of Batavia, for about the sum of $241 27.” It farther states, that on the 13th day of November, 1839, the complainants issued an execution to the sheriff of the county of Genesee, to collect said judgment; but it makes no other averment as to the residence of the defendant. The bill was filed in March, 1840. A motion is now made by the defendant, for the dissolution of the injunction founded upon the bill itself. Previous to the notice of this motion, the defendant had been brought up on attachment, for the violation of the injunction allowed upon the filing of the bill. This stood over for the purpose of taking proofs as to the troth of the defendant’s answer to the interrogatories filed on the return .of the attachment\ and now both questions are brought bn together. A. Smith, for complainants. T. Fitch, in person. [MAJORITY — The Vice Chancellor.] The Vice Chancellor. The only plausible ground upon which the motion for the dissolution of the injunction is founded, is, that the bill does not shew upon its face that the complainants have exhausted their remedy at law, inasmuch as they have .not. set forth the residence of the defendant at the time of issuing their execution at law. The bill, it is true, in its commencement describes the residence of the defendant as being in Genesee county. But this, if it be deemed an averment at all, is only an averment that the defendant resided in that county at the time the bill was filed, which was in March, 1840. There is no averment as to the place of residence of the defendant when the execution was issued. Under the decision of the Chancellor in the case of Reed vs. Wheaton, 7 Paige, 663, I am constrained to allow this motion. In that case, and also in a case recently decided, (Gaylord vs. Hendrickson,) the Chancellor has determined that a creditor’s bill should aver that- the defendant was a resident of the county to which the execution was issued, at that time; and in the last case, has given the form of the averment. In the former case, too, he has said that a mere statement of the residence of the defendant in the commencement of the bill, is not a sufficient averment of residence, at the time of issuing the execution. These two cases certainly cover the question presen ted in this case, and upon their authority the injunction in this case must be dissolved. After coming to this result, it is next necessary to inquire what effect this conclusion has upon the attachment. It now appears that the injunction was improperly issued in the first instance; but still it was regular, and, as process, carried with it the full authority of the court, aud should have been obeyed. It is no excuse for the defendant that the injunction was improvidently issued, to save him wholly from the consequences of the contempt; but the circumstances may be taken into consideration in the amount of fine to be inflicted. This case is similar to that of Sullivan vs. Judah, 4 Paige, 444. The complainant has sustained no legal injury or damage by the act of the defendant; but still, by this act the defendant contemned the process of the court, and for that he must be punished by payment of the costs or such of the costs of the proceedings, as he would under other circumstances be compelled to pay. These costs of these proceedings must be arranged as follows: the complainant must pay the defendant the costs of the motion to dissolve the injunction, also the costs of the demurrer to one of the interrogatories which was allowed. The defendant must pay the complainants the costs of the proceedings upon the attachment up to the time of the order of reference to a master to take proofs of the truth of the defendant’s answer. As to the proceedings upon the attachment subsequent to the reference, neither party is to have costs as against the other. The costs allowed to each party, are to be offset against each other; and upon the defendant’s paying the complainants the balance, (if any,) all farther proceedings upon the contempt are to be stayed. As the complainants propose to carry the question before the Chancellor again, the order for the dissolution of the injunction is not to be operative if the complainants file and perfect an appeal within fifteen days, until the decision upon such appeal; otherwise, to be operative after the expiration of fifteen days.